Dutch law has no full discovery procedure comparable to that in the United States. However, a party can petition for the disclosure of certain specified documents held by another party if the petitioning party has a lawful interest. This petition for disclosure is becoming increasingly popular in Dutch civil litigation.
The Supreme Court recently rendered a judgment(1) from which it can be concluded that such a petition can also be made in support of foreign proceedings. Conversely, a court of first instance(2) recently allowed a party to collect evidence through a US discovery procedure in support of proceedings before the Dutch court. The court ruled that this right to collect evidence was not restricted by a general choice of jurisdiction in case of dispute. If the parties had wished to exclude that possibility, this should have been stipulated in the relevant shareholders' agreements.
Under Article 843(a) of the Code of Civil Procedure, a party may petition to inspect, or to obtain a copy or an extract of, one or more specified documents held by another party. The petition may be granted if three conditions are met:
- The requesting party has a lawful interest. Thus, a request cannot be made with the sole purpose of placing the other party at a disadvantage. A lawful interest is generally assumed to exist if the petition is submitted with a view to litigation or in the context of ongoing litigation.
- The request is limited to duly identified or specified documents - this condition is intended to prevent 'fishing expeditions'.
- The requested documents relate to an existing legal relationship to which the petitioner is a party.
A party cannot be compelled to disclose certain documents if there are substantial reasons to deny the petition or if the documents are not necessary for the fair administration of justice.
The Supreme Court ruling arose from a following dispute between Abu Dhabi Islamic Bank (ADIB) and Fortis Bank regarding a letter of credit, for which ADIB acted as the first confirming bank and Fortis as the second. Within the scope of the letter of credit, Fortis made an amount of $40 million available to the beneficiary. Subsequently, Fortis requested reimbursement from ADIB. When ADIB did not comply, Fortis levied a conservatory attachment to ensure recourse for its claim against ADIB. In the procedure that followed, ADIB asked Fortis to lift the attachment and petitioned for the disclosure of certain documents regarding the letter of credit. The summary judge denied the petition to lift the attachment and disclose the documents. ADIB appealed.
During the appeal proceedings, Fortis lifted the attachment and the parties continued the procedure on ADIB's petition to disclose the documents. ADIB argued that the claimed beneficiary might have committed fraud, and that Fortis might have been aware of this. Therefore, ADIB maintained that the documents could be relevant to the question of whether Fortis had unlawfully claimed reimbursement under the letter of credit. The appellate court denied ADIB's petition as no main proceedings had been initiated in the Netherlands – the parties were litigating in the United States and Bahrain.
The Supreme Court overturned the ruling. It ruled that the right of a petitioning party to request the disclosure of certain documents is an independent right. It does not follow from Article 843(a), or from the origin of the provision, that a procedure must be pending or be initiated before a Dutch court.
For further information on this topic please contact Erwin Bos or Katelijne De Smet at Clifford Chance LLP by telephone (+31 20 711 9000), fax (+31 20 711 9999) or email (firstname.lastname@example.org or